Opinion
2005-016-058.
Decided September 7, 2005.
Wingate, Russotti Shapiro, William P. Hepner, Esq., Claimant's attorney.
Eliot Spitzer, Attorney General Ellen Matowik, Esq., AAG, Defendant's attorney.
Recitation:
This is the motion of Mizuko Yamaoka for permission to file a late claim pursuant to § 10.6 of the Court of Claims Act (the "Act"). In her proposed claim, Ms. Yamaoka alleges that on June 1, 2002, while riding a bicycle, she was severely injured when she was struck by a car at the intersection of Meeker Avenue and Union Street in Brooklyn. As a result of the accident, she was rendered a quadriplegic. According to claimant, as she was traveling north on Union Street, approaching the intersection with Meeker Avenue, she could see a green "walk" signal facing her, although her lawyer concedes that "it is apparent that an overhead light for her direction of travel prior to reaching the intersection was red." As set forth more fully below, claimant contends that the walk signal, which was actually for east/west pedestrian traffic, was angled incorrectly and led her to believe she could proceed into the intersection.
Text of the decision:
In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.
See Bay Terrace Coop. Section IV, Inc. v. New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v. State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
The first three factors whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v. State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Defendant does not dispute that these three factors have been met, and I conclude that they have been satisfied.
For example, it is alleged that the State reconfigured the intersection in the 1980's, which according to claimant, "has been in the same condition for years." In addition, as to the accident itself, a police report was prepared.
As to an alternate remedy, claimant has also sued the City of New York and could sue the driver of the vehicle which hit her. With regard to excuse, claimant essentially states that she only recently became aware of the State's involvement. Such is not a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. v. State of New York, 235 AD2d 540, 652 NYS2d 759 (2nd Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).
Defendant does not dispute claimant's contention that while the City of New York owns the site of the Accident, the State reconfigured the intersection in the late 1980's.
Finally, it must be determined whether the proposed claim appears meritorious. Claimant has submitted the affidavit of an expert, Nicholas Bellizzi. Mr. Bellizzi states that the "walk/don't walk" signal for pedestrians crossing Union Street east/west (claimant was traveling southbound on Union Street) was angled such that claimant could see it, confusing her. According to Bellizzi, such pedestrian signal should not have been visible to claimant. He continues that:
In my opinion this intersection had a highly confusing traffic pattern and traffic signal configuration, since the operator of a vehicle (including a bicycle) would be faced with very mixed signals while traveling on northbound Union. Operators of vehicles take visual clues from all aspects of traffic patterns, not just the traffic control signals. Before the actual intersection in question, there was only one traffic signal, located high above the traffic . . . At this particular intersection, an operator's eyes would naturally be drawn to the walk sign, which is at eye level and is improperly angled to face two directions, including [claimant's] . . . my opinion is that the angle at which the "walk/don't walk" signal was placed and/or maintained, did not conform to good and commonly accepted safe intersection design practices and the New York State Manual of Uniform Traffic Control Devices . . . Moreover, the overgrown foliage on the concrete divider, which would block the view of vehicles approaching the intersection from the north and west, indicated inadequate and improper maintenance practices.
See ¶¶ 6-11 of the July 15, 2005 affidavit of Nicholas Bellizzi, annexed as exhibit A to claimant's reply papers.
Overall, I find that claimant meets the standard set forth in Matter of Santana v. New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."
Accordingly, having reviewed the parties' submissions, IT IS ORDERED that motion no. M-70186 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed claim submitted with this motion, and otherwise comply with §§ 11 and 11-a of the Court of Claims Act.
The Court reviewed: claimant's notice of motion with affirmation in support and exhibits A through I; defendant's affirmation in opposition; and claimant's reply affirmation with exhibits A and B.
Appendices: